There’s no point rehashing the short sighted stupidity of the FISA bill passed by Congress this week. (Mr. Greenwald, once again, has everything you need to know in one place.) It contains retroactive immunity for the telephone companies, precludes any further investigation into just how the law was broken, and undermines the spirit and the letter of the Constitution of the United States. Bush the Younger couldn’t sign it fast enough. These developments are unwelcome and unsurprising but in the long run it’s just one more item on the list of things we’re going to be embarrassed about fifty years from now, and at this point, what’s one more? While the policy is distasteful and disappointing, it’s the politics of it that’s the real head scratcher.
Barack Obama has taken a lot of heat for reneging on his promise from last year to filibuster against any FISA bill containing retroactive immunity. His left wing supporters went ballistic to such a degree that a friend of mine who works for the Obama campaign told me the call center people were keeping two call logs, one for FISA complaints and one for everything else. Even John McCain got in on the act. What’s disappointing about this isn’t that Obama-the-nominee went back on a promise Obama-the-candidate-for-nomination made. The man is a politician and I’d be suspicious if he didn’t reverse himself on a campaign promise or two. What’s disappointing is that instead of fighting the good fight (because it’s both the right thing to do and the popular thing to do), he took a page from the 2002-2006 Democratic playbook and caved to some nebulous fear. Fighting the good fight is what got him the nomination and put him ahead in the polls. Caving is what gave us Bush the Younger’s second term.
The FISA bill has a lot of bad parts that haven’t been remarked upon as much as retroactive immunity (there’s an mp3 of a conversation between Greenwald and an ACLU lawyer that lays the whole sad thing out, the early scratchiness of the audio gets fixed), but let’s set those aside for the moment and concentrate on the bright shiny light of retroactive immunity. This is, near as I can figure, a comprehensive list of those who benefit from the inclusion of retroactive immunity in the FISA bill:
1) The telephone companies who broke the law.
2) Those to whom the telephone companies give money.
3) ???
Are there a lot of voters out there who, when asked about the phone company, are quick to say that government needs to get off their backs? What, exactly, is the political penalty to be paid for doing the right thing here? If the Democrats had passed a bill which contained everything but immunity it’s likely that Bush the Younger would’ve vetoed it. Well, who gives a shit? He’s the least popular sitting president in history. Having him veto your legislation would seem to be a popular position. The worst thing he can do is go on television and say that those terrorist coddling Democrats have tied his hands and endangered the nation. First, he’s going to say that anyway; second, who still listens to him?
Jon Taplin had an interesting take on it the other day. In a general critique of the “Obama is centering himself” meme Taplin wrote:
As to the immunity for the telecoms, from Barack’s point of view starting in January 2009, I can’t imagine he wants to start his term in the “Truth and Reconciliation Commission” business, investigating AT&T, Verizon, et al. through whose switches flow 90% of the country’s internet traffic. I know there are lots of people on the left who want revenge on the big telecoms, but it’s a fools errand.
What the hell would a President Obama care about lawsuits exposing the lawbreaking of his predecessor? How could that damage or distract an Obama White House? (Incidentally, I agree with what Taplin wrote in that post about religion and Iran.)
The argument I’ve seen put forward is that the telephone companies would be reluctant to tap communications in the future. How insane is that? If the government comes to AT&T or Comcast or Verizon or anyone else with a legal court order for a wiretap the telephone company is going to comply. It’s the law, and everyone, telephone companies, law enforcement people, and private citizens, are supposed to obey it. That’s the whole idea of getting a legal court order in the first place, to legalize that which would otherwise be illegal. It’s a safeguard against abuse of power.
I certainly understand that Obama is likely to be the primary beneficiary of any expansion of executive power at this point. But I don’t understand what political price he would pay for fighting tooth and nail against retroactive immunity. He’s talked about getting money out of politics; this is money in politics in its purest form. He’s talked about depoliticizing national security; retroactive immunity is a glaring example of the politicization of national security. Those are popular positions and they’ve benefitted him greatly up to this point, why stop now?
If there’s one unambiguous lesson that we’ve learned in the last seven years it’s that every single decision Bush the Younger has made in regards to national security is both ineffective and unpopular. For fear of political penalties the Democrats have run scared from him and now, even though he is as weak as a kitten, they still fall over backwards out of fear of terrorism, fear of Republicans, fear of being called weak. That’s some shameful shit and prior to this Barack Obama had stood up against it. Let’s hope this doesn’t develop into a new habit for him.
